Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

George Hume, Younger of Wedderburn,
v.
Joseph Hume of Ninewells, Advocate

Date: 29 December 1710

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Mr. Joseph Hume being obliged, by the reddendo in the charter of great part of his lands holden of George Hume of Wedderburn, to appear at Wedderburn's courts, to be held upon the barony of Hornden, (within which the said lands lie,) or upon any other of Wedderburn's lands within the shire of Berwick; and there to do every thing before Wedderburn and his bailies that he ought in law to do; and to serve him tempore regiarum proclamationum, upon Mr. Joseph's own expenses: and Wedderburn having advertised him by a letter, to attend and accompany him to the circuit Court of Justiciary, to be held at Jedburgh, 10th May, 1709, conform to her Majesty's proclamation: upon Mr. Joseph's failure in that piece of duty, Wedderburn caused Alexander Nisbet, his baron-officer, cite him personally at his dwelling-house of Ninewells, to compear the 28th of the said month, at a court to be held by Wedderburn's bailie at Hutton, who decerned him in absence to pay L.50 Scots of fine. Ninewells suspended upon this ground, that he was not lawfully cited, the copy being given to him at his house of Ninewells, which is not within the barony of Hornden: and the baron-officer could execute no summons without the barony.

Replied for Wedderburn,—Albeit the suspender was not cited within the barony of Horden, the citation is valid; because he is by his charter obliged to appear at all the charger's courts when required, whether he dwell within the barony or not; which implies, that he may be cited for that effect at any place.

Duplied for the suspender,—By attendance at courts, in the charter, personal suit and presence only is meant; and payment of feu-duties is meant by the doing every thing that the vassal ought in law to do: but he is not bound to answer to any action at the superior's instance, unless cited duly within the barony; for extra territorium, jus dicenti impune non paretur.

The Lords sustained the reason of suspension, That the baron-officer did execute the libel whereupon the decreet charged on proceeded, extra territorium; and found the decreet to be null.

Page 467.